As the law casts the land upon the infant, it makes him legally competent to bear the burdens imposed upon it. He can only escape the obligation by ceasing to own the property; on the other hand, where the property is acquired by his own act, and the acquisition is voidable, he will escape liability by disaffirming the contract. If he does not do this, but remains owner, he cannot escape liability. This case may be illustrated by a subscription for railway shares. The rule, however, could not necessarily be applied to a case where an infant had taken a transfer of shares from an adult, as the latter might be bound to transfer to one who would by law be capable to assume the liability which the statute imposes, and accordingly the transferor would still be liable to an "official liquidator" in case of the insolvency of the company. There might be a difficulty in maintaining this view if the proceedings were against the infant and he did not repudiate the transaction.2

Reference may now be made to some questions involving the rights of unborn children. It has been held that if a suit be commenced, and an infant be born during its progress, the court will, if justice require it, make him a party to it."

Again, questions of construction in a will may involve the rights of unborn children. A leading modern instance is the case of a testator making bequests to two existing reputed children of his mistress, M. L., and to" all other children which he might have or be reputed to have by M. L. then born or thereafter to be born." A child was born of M. L. after the execution of the will and before the testator's death, and was acknowledged by him. The court held that this third child was entitled as a legatee. In a later case the mother, being also a mistress, made the bequest in favor of "after born" children, and the same decision was made. In the first case the woman was pregnant when the will was made, and in the later, not. This fact was deemed immaterial.5

SECTION V. Statutory Protection to Infants. There is an important class of statutes of this kind both in England and in this country, showing an increased disposition on the part of legislatures to so control the contracts of infants as to prevent them from

1 In re Constantinople & Alexandria Hotel Co., L. R. 5 Ch. App. 302, 303, n. 1. LORD ROMILLY, M. R., said, "I am not aware of any case in which an infant has been relieved from shares which have been allotted to him on his own personal application."

2 See Capper's Case, L. R. 3 Ch. App. 458; Mann's Case, Id. 459, n. 1. Curtis's Case, L. R. 6 Eq. 455; Costello's

Case, L. R. 8 Eq. 504; Symons' Case, L. R. 5 Ch. App. 298; Weston's Case, Id. 614; Richardson's Case, L. R. 19 Eq. 588.

8 The George and Richard, L. R. 3 Adm. 466; Scruby v. Payne, 34 L. T. N. s. 845. Occleston v. Fullalove, L. R. 9 Ch.

App. 147.

5 In re Goodwin's Trust, L. R. 17 Eq. 345.

rendering service, etc., to the injury of their health and to the risk of their limbs or lives. In the same spirit are conceived the acts providing against cruelty to children. These acts will be stated more in detail.

The object of the so-called Factory Acts as passed by the English Parliament is to give protection to children and women employed in factories and workshops against injury from machinery, to secure good drainage and ventilation, to provide education for employees under thirteen years of age, and to regulate the hours of labor, meal-time, and overwork, etc. The statutes branch out into much minuteness of detail. This legislation is of course apparently open to the objection that it interferes with the right of employers freely to contract with their workmen. It seems, however, to be justified by the circumstances of the case, particularly in its application to children.2 There is similar legislation in this country.3

There is other legislation concerning children and a growing tendency to provide against acts endangering the health, life, or morals of young children, and to make it highly penal for parents and others having charge of them to abandon them or to neglect to provide properly for them. Reference to such legislation will be found in the note.*

SECTION VI. Liability of an Infant for his Torts. By a By a "tort" is here meant such a wrongful act unconnected with a contract as gives an injured party a right to recover damages or to obtain other suitable redress, but is not for the time being, at least, treated as a crime. Infancy is no excuse for the commission of such an act.

1 See 41 & 42 Vict. c. 16 in connection with former acts. See also 54 & 55 Vict. c. 75 and 55 & 56 Vict. c. 62.

2 A good general view of the history of this legislation is found in the 9th edition of the Encyclopædia Britannica, title "Factory Acts."

The legislation in New York upon this general subject is to be found in ch. 409 of the Laws of 1886, as amended by ch. 462 of the Laws of 1887; ch. 560, Laws of 1889; ch. 398, Laws of 1890; and ch. 673, Laws of 1892. The substance of these laws is, that no child under the age of fourteen shall be employed in any manufacturing establishment. "A manufacturing establishment" does not include an employer employing less than five persons, except in cities. A register must be kept

entering the name, birthplace, age, and residence of every employee under the age of sixteen, and these facts must be proved by affidavit, as prescribed in the Act of 1887, and kept on file by the employer. There are provisions for the enclosure of hoisting shafts, protecting of elevator ways, construction of fire-escapes, cleaning of machinery while it is in motion, for suitable wash-rooms and closets, and the time to be allowed for the noon-day meal (not less than forty-five minutes). A factory inspector, with an assistant and deputies, is created with provisions for carrying the statute into effect. Further details should be sought in the statutes.

4 Penal Code of New York, §§ 282, 287, 288, 289, 290 a, 291, 292, 292 a, 292 b. 293. See also § 887.

It has already been stated that an infant is not liable for a tort arising out of a contract. The meaning here is, that the wrong must not be committed as a mode of carrying out the contract. If an infant makes use of a contract as an occasion or opportunity to commit a tort, he will not be excused. Thus, if an infant, having hired a horse, should, through inexperience or negligence, drive him immoderately, or otherwise injure him, there would be no action.1 On the other hand, if he should wilfully maltreat the animal, he would be liable.2 The contract in this last case would simply supply an opportunity for the commission of the wrong. So he would be liable if he had been instructed by the owner not to use the horse in a particular way, such as to jump fences on a steeplechase, and he violated the directions to the owner's injury. It is enough that the wrongful act is independent of the contract. if he hires a horse to go to one place, but goes in a different direction, he is held in law to have converted the animal to his own use. If an adult did this he would be liable to an action for conversion.5 In like manner an infant would be liable. It has already been shown that if an infant practises a fraud in making a contract, he cannot be sued in an action which involves the affirmance of the contract. The better opinion is, that the injured party may disaffirm the contract on the ground that there was no true contract, and so recover back the goods in an appropriate action (replevin), or bring an action in conversion for their value.7

So

It is a general rule of law that one whose goods have been unlawfully converted and sold may waive the wrong and bring an action to recover the price received, by a species of ratification. This rule is applied to infants who are wrongdoers.8

The rule of liability for torts has been applied to a case where a missile, thrown by a lad in sport, caused injury. The theory is that the injured party is entitled to compensation for damages, even though there be in fact no malicious intent.9 The commission of the tort is not excused on the ground that the infant's father commanded him to commit it.10

1 Eaton v. Hill, 50 N. H. 235.

2 Id.

v. Cowan, 59 Ill. 341. For a discussion of the general subject, see Ferguson v.

8 Burnard v. Haggis, 14 C. B. N. s. 45; Bobo, 54 Miss. 121. Walley v. Holt, 35 L. T. N. s. 631.

Campbell v. Stakes, 2 Wend. 137. 5 Fish v. Ferris, 5 Duer, 49.

Homer v. Thwing, 3 Pick. 492; Towne v. Wiley, 23 Vt. 355; Vasse v. Smith, 6 Cranch, 226; Walker v. Davis, 1 Gray, 506. But see Penrose v. Curren, 3 Rawle (Penn.), 351.

7 Nolan v. Jones, 53 Ia. 887; Mathews

8 Elwell v. Martin, 32 Vt. 217; Shaw v. Coffin, 58 Me. 254. So if he had given his note by way of settlement it has been held that he could be sued upon the note. Ray v. Tubbs, 50 Vt. 688.

Peterson v. Haffner, 59 Ind. 130. See Conway v. Reed, 66 Mo. 346.

10 Humphrey v. Douglass, 10 Vt. 71.

SECTION VII. Liability for Crimes. The responsibility of an infant for the commission of a crime depends upon his capacity to form a criminal intent. There is an arbitrary rule of the common law that an infant under seven years of age cannot commit crime of the grade of felony. Between the ages of seven and fourteen he may or may not be capable, as the evidence shows discretion, or capacity to understand the nature of the act and its wrongfulness. After the prescribed age of fourteen he is presumptively capable.

The rule of incapacity extends to cases of criminal neglect as well as to positive wrongs. For example, a child of one or two years of age cannot be charged with crime for allowing a nuisance. to remain upon his property.3

Formerly the punishment for crimes committed by infants (having capacity) was the same as in the case of adults. The modern law is more humane and philosophical. The present practice, when the infant criminal is under a prescribed age (e. g., sixteen), is to commit him for care and training to institutions known as reformatories, houses of refuge, industrial schools, or juvenile asylums. These are regulated in England and the various States of this country by local statutes.*

Under a beneficent provision of the New York law, a male who is between the ages of sixteen and thirty, convicted of felony, who has not been previously convicted of felony, may, in the discretion of the court, be sentenced to a reformatory prison known as the New York State Reformatory at Elmira.5

1 The New York Penal Code is broader. Its language is that a child under the age of seven years cannot commit a crime, § 18.

2 State v. Learnard, 41 Vt. 585. The extreme age of presumptive incapacity is reduced in New York to twelve, § 19. There is a special rule in the case of rape. Penal Code, § 279.

8 People v. Townsend, 3 Hill, 479.

4 In New York see Penal Code, §§ 700, 701, and 713. In England see 29 & 30 Vict. c. 117, Reformatory Schools Act, also 37 & 38 Vict. c. 47 and the Industrial Schools Act of the same year, 29 & 30 Vict. c. 118.

5 Penal Code, § 700.

CHAPTER IX.

THE DOCTRINE OF STATUS AS AFFECTING THE CAPACITY OF PERSONS OF UNSOUND MIND (INCLUDING IDIOTS AND LUNATICS, AS WELL AS HABITUAL DRUNKARDS AND PRODIGALS).

THE principal object of this chapter is not to consider the rules of law which seem to test mental unsoundness, but to discuss the matter of placing persons ascertained to be of unsound mind under the care of guardians, conservators, or committees, or by whatever name such overseers may be called, as well as the legal effect of such guardianship upon the capacity of the ward to do future legal acts. Briefly stated, the topic concerns the "status" or legal condition of this class of persons.

It is well to premise, that questions of capacity to do legal acts may be presented to a court of justice under two leading conditions one where capacity is contested, and there is no guardian, and the other, where the act is done by one at the time under guardianship.

It is a rule that every court having the power to dispose of a matter in which the validity of a contract or other legal act comes in question, has jurisdiction incidentally to decide upon the capacity of a person performing the act under consideration. The validity of a deed, will, marriage or contract might be respectively in issue in one case before a court of law, in another before a court of equity, and again before a probate court; and if insanity were set up to overturn the transaction, the court having control of the controversy could lawfully determine whether a party to the transaction had sufficient mental capacity to perform it. Such a determination would, however, only dispose of the particular case, so that all the questions could be raised anew in a different action between other parties. This multiplicity of possible actions might be a very good reason, when mental unsoundness is assumed, for determining directly the capacity of the individual to do legal acts.

It should be added that such a person might, if not under guardianship, dissipate his estate, or destroy it altogether, by mere acts of insane folly, or might commit wrongs injurious to others, who would be entitled to compensation from his estate.